Abusive neighbours – your rights

neighbours fightingNeighbours from hell

So you’ve tried the diplomatic approach and made attempts to communicate with your neighbour in person (or by mail) about an ongoing problem. You may have even referred the problem to your local council or your strata management but that hasn’t helped.

If all your efforts are going nowhere, mediation hasn’t helped and all you’re getting is continued abuse and harassment, you most probably need to go to the police or the courts for help.

Be prepared

If you decide to take this step, you need to maximise your chances of a successful or satisfying outcome. Keeping accurate records of the problems you want solved is important if not essential. This includes the exact nature of the problem or abuse and the time and date it occurred. Encourage others also experiencing these problems to keep records as well. This information will help the police or courts to take action.

Collect evidence

Use your smartphone or video camera and when a neighbour is being abusive make it clear to them that they are being recorded. If the abuse relates to damage to your property you may also wish to install CCTV to monitor and collect evidence of any damage done. Ensure that your camera is not intrusive and aimed exclusively at your neighbours property. Keep the camera only on the area of your property you are concerned about.

It is against the law to carry on surveillance where someone would expect to have absolute privacy inside their house or their backyard. If a neighbour is throwing things from their yard onto yours or screaming abuse from their yard they are clearly not expecting privacy so you can record it. But if for example they are having a BBQ and minding their own business, your filming would not be allowed.

Laws relating to listening devices

The surveillance device laws in Australia are fairly consistent from state to state but there are a few slight differences when it comes to listening devices (which includes video cameras).
Keep in mind that if you’re having a private conversation in your living room with a neighbour about a problem you shouldn’t record it unless you have their consent. You should record that consent from them on film.

If a neighbour is having a private conversation on their property you shouldn’t record it as it is considered prying which is against the law.

Take a look at the key legal points for each state and territory:

VIC

  • If you are a party to the conversation, the use of a Listening Device is not restricted.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, use of a Listening Device is not restricted.
  • If you’re not a party to the conversation, you need consent from all the parties not just one.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.

NSW

  • If you are a party to the conversation, and if you have consent from all the principal parties (express or implied), you may use a Listening Device.
  • If you are a party to the conversation, and you are recording the conversation to protect your own lawful interests (eg. as evidence against later invented allegations of what was said) then you do not need consent from the other parties.
  • If you’re not a party to the private conversation, use of a Listening Device is restricted even if you have consent.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, then it’s not a private conversation and use of a Listening Device is not restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted. “Causing” a Listening Device to be used unlawfully (asking someone else to do it) is also an offence

QLD

  • If you’re not a party to the private conversation, use of a Listening Device is restricted.
  • If you have consent to overhear/record/etc the conversation from one of the principal parties, you are a party to that conversation.
  • If you are a party to the conversation, the use a Listening Device is not restricted.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, then it’s not a private conversation and use of a Listening Device is not restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted. Only the use, not the installation or maintenance of a listening device is restricted in Queensland.

WA

  • If you are not a party to the private conversation, the use of a Listening Device is restricted.
  • If you are a principle party to the conversation and you’re making a recording for protection of your interests, the use of a Listening Device is not restricted.
  • If you have consent from a principal party to the conversation and you’re making a recording for protection of that party’s interests, the use of a Listening Device is not restricted.
  • If you are a party to the conversation, and you have consent from all the principle parties, the use of a Listening Device is not restricted.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, the use of a Listening Device is not restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.

SA

  • If you are a party to the conversation, and you have consent from all the parties to that conversation, the use of a Listening Device is not restricted.
  • If you are a party to the conversation, and the use is in the course of your duty, or in the public interest, or to protect your interests, the use of a Listening Device is not restricted.
  • If you’re not a party to the conversation, the use of a Listening Device is restricted.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, use of a Listening Device is still restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.

TAS

  • If you’re not a party to the private conversation, use of a Listening Device is restricted.
  • If you have consent to overhear/record/etc the conversation from one of the principal parties, you are a party to that conversation.
  • If you are a party to the conversation, and you have consent of all the principal parties, the use a Listening Device is not restricted.
  • If you are a party to the conversation, and you have the consent of one principal party, and it’s for the protection of that party’s interests, the use of a device is not restricted.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, then it’s not a private conversation and use of a Listening Device is still restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.

NT

  • If you are a party to the conversation, the use of a Listening Device is not restricted.
  • If you have consent from all the parties to the conversation, or you think you do (ie. you don’t know that you don’t), then the use of a Listening Device is not restricted.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, use of a Listening Device is not restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.

ACT

  • If you’re not a party to the private conversation, use of a Listening Device is restricted.
  • If you have consent to overhear/record/etc the conversation from one of the principle parties, you are a party to that conversation.
  • If you are a party to the conversation, and you have consent of all the principal parties, the use a Listening Device is not restricted.
  • If you are a party to the conversation, and you have the consent of one principal party, and it’s for the protection of that party’s interests, the use of a device is not restricted.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, then it’s not a private conversation and use of a Listening Device is still restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.

angry abusive neighbourApprehended Personal Violence Orders (APVO)

A person can ask the court to make an APVO with the neighbour they want protection from. When the situation is particularly bad and you are waiting for your matter to be heard at court the police maybe able to assist you with an interim (immediate) order. However, the circumstance for getting this varies so you need to discuss this with the officer handling your matter.

Getting an AVO from the court

If you are experiencing violence you can apply for an AVO. You can also apply for an AVO if: You are in fear of being assaulted You are being intimidated, harassed or molested (either in person or by telephone calls, text messages, emails, or in other ways, including through Facebook or other similar websites), and fear for your safety You are being stalked by someone where you live, where you work, or at places that you go.

The court has to be convinced that the protected person needs an AVO because they fear the defendant, and it is reasonable for them to fear the defendant. The court needs to be convinced on the balance of probabilities, which means that something is more likely to be true than not. The point here is that you should collect as much evidence of a neighbour’s bad behaviour as is legally possible.

The process to get an intervention order

Different states have different names for these, so just go to the link for your area to find out how to apply for your court order:

ACT
NSW
VIC
NT
SA
QLD
TAS
WA